By Janene Oleaga, Esq.
With some negative press about gestational surrogacy lately, it can be easy to lose sight of the extraordinary gift that surrogacy truly is. Sensational stories grab headlines, and scandal sells more subscriptions than the quiet, beautiful news of a baby being born. Surrogacy has become so familiar that the remarkable act at its core – a woman choosing to carry and give birth to a child so another couple can become parents – is often treated as routine rather than the profound generosity and humanity that it represents. What should inspire awe is no longer treated as newsworthy.
Yes, there have been troubling headlines recently, including about this agency closing abruptly A Surrogacy Firm Told Parents-to-Be Their Money Was Safe. Suddenly, It Vanished. – The New York Times. Unfortunately, there have always been bad actors who prey on the most vulnerable, and surrogacy is no exception. While I am grateful that these individuals are being exposed and [hopefully] being held accountable, I refuse to let their actions overshadow the countless ethical and compassionate journeys that define this path to parenthood.
Here is advice to help safeguard intended parents navigating gestational surrogacy in 2026 and beyond.
#1: Build Your Team
It cannot be overstated how important it is to have the right people advocating for and supporting you at every step of your path to parenthood. Your full team may include physicians, lawyers, mental health professionals, financial specialists, insurance providers, other surrogacy professionals, and your personal support system. Let’s begin by introducing some of the key team members who should be involved early in your journey:
Surrogacy Agency: Your surrogacy agency will guide you through every stage in your surrogacy journey from matching you with a suitable gestational surrogate, to the birth of your baby and beyond. It is strongly recommended that you meet with multiple agencies, ask thoughtful questions, and ultimately use both logic and intuition to choose the agency that best aligns with your needs and desires. Feedback and experiences of other intended parents can also be a valuable resource. Important questions to consider include:
- How long has the agency been operational? Are there any pending lawsuits or legal claims?
- How long have the agency’s staff members been in the surrogacy field?
- Who will serve as your main point of contact at the agency? Do your communication styles align?
- Is there a clear separation between agency operations and client funds?
- Is the agency’s fee structure transparent and clearly outlined?
- What are the agency’s policies regarding refunds and re-match fees?
- What is the estimated time frame for matching with a gestational surrogate?
- Does the agency pre-screen surrogates? And if so, what does the process include?
Be mindful of red flags when considering these questions, such as feeling pressured rather than supported, or receiving vague or unclear responses – particularly when it comes to financial questions.
Attorney: Having an independent attorney of your choice is essential throughout your surrogacy journey. You should engage your attorney early, to review agency contracts and share insight that may determine your choice of agency, IVF clinic, or other factors. Surrogacy law is highly specialized and complex, requiring legal expertise in both drafting gestational surrogacy agreements and in filing the legal proceedings necessary to establish your parental rights. Your surrogate is also required to have separate and independent legal counsel. Your attorney should provide timely and accurate answers to your questions, draft the agreement to the specific details of your surrogacy arrangement, and ensure you fully understand your contractual obligations and the process for securing your legal parentage.
While some agencies offer in-house legal counsel, this option should be approached with caution. An attorney who is independent from the agency helps avoid potential conflicts of interest that can arise when legal counsel represents intended parents while being employed by the agency. Your attorney’s sole obligation should always be to you, and it should be clear at all times that you are the client.
#2: Money Matters: Escrow and Insurance
Escrow: Opening and funding a trust account is a standard and essential part of every surrogacy journey. Because this account will hold and distribute a significant amount of money over an extended period of time, it’s considered best practice to choose an escrow agent who is independent from your surrogacy agency and your lawyer.
A reputable escrow agent should be properly licensed and bonded, meaning they are authorized by the appropriate authority to act as an escrow agent, and insured to protect your money against fraud or illegal activity. Your money should be held in a segregated account, separate from both the agent’s operating funds and the funds of other clients. You should receive regular, detailed account statements showing all deposits and disbursements, and you should always be able to access your account balance.
Insurance Policies: Insurance is another critical component of every surrogacy arrangement. At a minimum, you will need to ensure that both adequate health insurance and life insurance are in place prior to any embryo transfer procedure and throughout the surrogate’s pregnancy and postpartum period. Depending on the circumstances, additional insurance products may be required or recommended, such as coverage for bed rest, loss of reproductive organs, and other pregnancy-related risks. Jurisdictions and agencies have different requirements for health insurance and life insurance, and the plans available to you and your surrogate are entirely dependent on the details of your surrogacy arrangement.
#3: Medical Procedures Considerations
IVF Physician/REI: Choosing a FertilityPhysician/Reproductive Endocrinologist is sometimes the first step on the path to parenthood, and sometimes couples pursue fertility treatment before knowing they may require the assistance of a gestational surrogate. When it comes to selecting a doctor and practice, several factors should be considered, including clinical success rates, bedside manner, patient reviews, out-of-pocket costs, clinic location, and ease of communication. Because surrogacy involves additional medical, legal, and logistical considerations, it is important to select a clinic with experience in third party reproductive arrangements. Your clinic will medically screen your surrogate to ensure she is a suitable candidate for gestational surrogacy, so you may also want to inquire as to the clinic’s specific requirements for gestational surrogates.
Mental Health Providers: Your surrogate should be screened both medically and psychologically in the early stage of your surrogacy journey and certainly before any embryo transfer procedure. Having a licensed mental health provider experienced with third party reproductive arrangements complete individual and joint psychological evaluations for all parties is considered best practice and often legally required. Typically, the individual and joint sessions are designed to explore expectations, communication styles, boundaries, and potential stressors related to the anticipated pregnancy, birth, and postpartum period. Mental health professionals also assess readiness, emotional stability, and the ability to navigate complex relationships throughout the process.
#4: Gestational Surrogacy Contract Points
Your surrogacy agreement serves as the roadmap for your entire surrogacy journey, setting expectations, protecting all parties, and clearly outlining rights and responsibilities of all parties. A well-drafted gestational surrogacy arrangement clearly outlines each aspect of the arrangement.
Medically, the agreement should clearly outline who has decision-making authority during the pregnancy under various circumstances, and address any agreed upon lifestyle restrictions,such as travel, activity levels, diet, and substance use. The agreement should also clearly identify the legal parents and the process for establishing parentage, including timing and jurisdiction.
Financial provisions are another critical component of the gestational surrogacy agreement and should be addressed in detail, including amounts and timing of payments for base compensation and reimbursement for pregnancy-related expenses including lost wages, childcare costs, bed rest, maternity clothing, travel, providing breast milk, and other potential contingencies. Clear financial terms help prevent misunderstanding and reduce the risk of conflict later in the process.
While this is an oversimplification of everything that is included in a gestational surrogacy agreement, the importance is that your agreement is comprehensive and precise with the goal of transparency, clarity, and alignment of the parties.
#5: Pregnancy & Birth
Throughout the pregnancy and leading up to the birth intended parents should remain actively involved while respecting the surrogate’s autonomy. Regular communication and appropriate participation at medical appointments help maintain alignment and trust. While emotions run high, it’s important to remember the delicate balance of a pregnant woman’s autonomy and the intended parents’ relationship to their unborn child. Emotional support should never cross into control.
Legal parentage should be established as early as possible, and even pre-birth if you can benefit from a jurisdiction that allows for a pre-birth legal process. Your attorney should coordinate with the hospital ahead of the birth to share legal orders, confirm hospital policies, ensure hospital staff understand the gestational surrogacy arrangement, and clarify who has authority to make medical decisions for the baby and assume custody upon discharge. Surrogacy agencies often assist with travel and logistical planning and sometimes offer to assist the parties in developing a written birth plan to further support a smooth, respectful birth experience for everyone involved.
#6: Taking Baby Home & Postpartum
The best part! Once your baby is born there are several steps to finalize your surrogacy journey. If your legal parentage was not established pre-birth, your attorney will need to take action promptly to secure your parental rights. This may include obtaining a post-birth order, amending an existing pre-birth order, and/or securing a birth certificate with your names provided as the child’s parents. For intended parents traveling internationally, it is also essential to obtain the necessary travel documents for your new baby, including a passport and visas, if applicable, so you can safely and legally take your new baby home. Financial considerations remain important even postpartum, including verifying the remaining balance in your escrow account, confirming which funds are allocated for the surrogate, ensuring you have adequate funds to pay any hospital and medical bills, and determining how long your escrow account is required to remain open.
Other practical matters may include arranging for ongoing medical care for the baby, obtaining insurance coverage, deciding on formula or breast milk, and coordinating with your surrogate for postpartum care and support. Often this is when intended parents provide gifts to thank their surrogate for her strength and generosity. Planning carefully for these legal, financial, logistical, and emotional aspects supports a smooth transition into parenthood (for the intended parents) and postpartum (for the surrogate), and provides everyone involved to feel respected, supported, and valued. Addressing these considerations in advance leaves room to focus on the joy of a new baby and honoring the process that made parenthood possible.
Final Thoughts
Gestational surrogacy can be an incredible way to grow your family, but it also comes with unique legal, emotional, and logistical challenges. By staying organized, proactive, and attentive to both your intuition and the details, you can create a smoother and safer experience for everyone involved. Clear agreements, open dialogue, and comprehensive protections aren’t just bureaucratic necessities—they’re the foundation for a positive, respectful, and successful surrogacy journey.
Trust your intuition; if something feels off, don’t ignore it. Recognize warning signs based on the information above and reach out to your team members when you need assistance or explanation. Transparency and clear communication with your surrogate and all members of your team form the foundation for a positive, smooth, and successful surrogacy journey.
Janene Oleaga, Esq. (she/her) is a fertility lawyer and reproductive rights advocate. Founder of Oleaga Law LLC, Janene is a member of the AllPaths Board of Directors and serves as the Chair of AllPaths Advocacy Committee.